Dismissed

Ahammedunni v. Abdulla

Kerala HC2 Dec 2020Crl.L.P./265/2020

Case brief

AI extract

What is this about?

In Crl.L.P. No. 265 of 2020, the Kerala High Court dismissed the petitioner's petition for remand. The trial court had acquitted the respondent because the firm issuing the cheque was not arrayed as an accused, citing recent principles. The High Court held that this legal position is settled and refused to remand the case.

What did the court decide?

None. The request to remand the matter to the lower court was rejected.

Ahammedunni Vs Abdulla — Cheque Dishonour | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942

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Crl.L.P..No.265 OF 2020

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CC 104/2018 DATED 06-01-2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS II,CHAVAKKAD

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PETITIONER/S:

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AHAMMEDUNNI

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AGED 82 YEARS S/O.AMBALATHU VEETTIL THEKKUPURATHU MOIDUNNI HAJI, ORUMANAYOOR AMSOM DESOM, CHAVAKKAD TALUK, ORUMANAYOOR P.O., THRISSUR DISTRICT 680 512

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BY ADV. SRI.P.RAMACHANDRAN

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RESPONDENT/S:

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1 ABDULLA

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S/O.OORATHODIYIL ALIKKUTTY, THRITHALA P.O., PALAKKAD DISTRICT 679 534, MANAGING PARTNER, AVATHAR GOLD AND DIAMONDS, THRISSUR

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2 THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

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OTHER PRESENT:

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SR.PP.C.S.HRITHWIK

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 02.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.L.P No.265 of 2020

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ORDER

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Dated this the 2^nd day of December , 2020

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Petitioner is the complainant in C.C.No.104 of 2018 filed before the Judicial First Class Magistrate Court-II, Chavakkad, alleging

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commission of offence under Section 138 of the Negotiable Instruments Act. The allegation in the complaint is that, towards repayment of an amount of Rs.11,00,000/- deposited by the complainant into the business of the accused, cheque dated 26.08.2016 for Rs.11,00,000/- drawn on the account of the accused's firm by name 'Avathar Jewellers' was issued in favour of the complainant. Contrary to the assurance given by the accused, the cheque was dishonoured on presentation, due to insufficiency of funds in the account of the firm. Even though notice was issued demanding payment of the amount, the accused did not repay the amount

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Crl.L.P No.265 of 2020

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or even reply to the notice. Hence, the complaint.

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2. In order to prove the allegations, the

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complainant examined himself as PW1 and marked Exts.P1 to P8. During his examination under

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incriminating circumstances, but did not adduce defence evidence.

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3. On appreciation of evidence and

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consideration of the legal aspects, trial court found that the cheque was drawn on the account of the firm, but statutory notice was issued to the accused and the firm was not arrayed as accused in the complaint. Hence, relying on the decisions in Indira Gandhi Memorial General Marketing Society Ltd v. Roys Abraham and others [2017 (3) KLT 858]

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and Himanshu v. Shiva Murthy [2019 (1) KLJ 853 SC] , it was held that Ext.P1 cheque was not enforceable against the accused in his personal capacity, based on a cheque issued on behalf of

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Crl.L.P No.265 of 2020

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'Avathar Jewellers'. Consequently, the accused was acquitted under Section 255(1) of Cr.P.C.

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4. The legal position, of a complaint under Section 138 of the N.I.Act being not maintainable without the firm or company on the party array, when the cheque is issued in the name of the firm or company, is no more res integra . Therefore, despite the vociferous and detailed arguments put forth by the learned Counsel for the petitioner, that the matter ought to be remanded to provide an opportunity to the complainant to make good the mistake, I am unable to accept the contentions or accede to the request for remand. I find no reason to arrive at a finding, different from that of the learned Magistrate.

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In the result, the Crl.L.P is dismissed.

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Sd/V.G.ARUN JUDGE

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Scl/02.12.2020

Ahammedunni v. Abdulla

Case brief

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Ahammedunni v. Abdulla

Case brief

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